HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL

Third-party
defendant’s attorney:

Signature date:

February 9, 2006

City:

White Plains

Comments:

Official citation:

Appellate results:

AFFIRMED 39 AD3D 1296 2D DEPT 4/17/07

See also (multicaptioned
case)

Decision

The following papers numbered 1 to 4 were read and considered on
Claimant’s motion

for permission to file a late claim pursuant to
§10(6) Court of Claims Act:

1,2 Notice of Motion to File a Late
Notice of Claim (sic); Affirmation in Support of Motion by Eleanor N.
Flach, Attorney for Claimant and Affidavit of Merit by Larry Hernandez,
Claimant, and attached exhibits

Affirmation
by Dewey Lee, Assistant Attorney General

Reply
Affirmation by Eleanor N. Flach, Attorney for Claimant

In the
proposed claim, Larry Hernandez alleges that on or about May 22, 2004, while he
was incarcerated at Green Haven Correctional Facility (hereafter Green Haven),
and more specifically under the care of the Office of Mental Health at Green
Haven because of his bi-polar disorder, Defendant’s agents
“negligently caused injury to claimant in an attempt to subdue him.”
[Affirmation by Eleanor N. Flach, Exhibit 12] The injury complained of is a
“fracture of the shaft of the distal right humerus requiring open
reduction and internal fixation.” [id.]. He also indicates
that he was agitated at the time because of a “lack of, and/or change in
medications prescribed.” [id.]. In order to determine
an application for permission to serve and file a late claim, the Court must
consider, “among other factors,” the six factors set forth in
§10(6) of the Court of Claims Act. The factors stated therein are: (1)
whether the delay in filing the claim was excusable; (2) whether the State had
notice of the essential facts constituting the claim; (3) whether the State had
an opportunity to investigate the circumstances underlying the claim; (4)
whether the claim appears meritorious; (5) whether substantial prejudice
resulted from the failure to timely serve upon the Attorney General a claim or
notice of intention to file a claim, and the failure to timely file the claim
with the Court of Claims; and (6) whether any other remedy is available. The
Court is afforded considerable discretion in determining whether to permit the
late filing of a claim. See e.g.Matter of Gavigan v State of New
York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any
particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v
New York State Employees’ Retirement System Policemen’s &
Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v
State of New York, 288 AD2d 172 (2d Dept 2001). Counsel for the Claimant
indicates that her office was first contacted by Claimant’s mother
relative to her son’s situation in February 2005. [Affirmation by Eleanor
N. Flach, ¶ 11]. Before then, Claimant himself had sought redress through
the grievance process at the facility. [Ibid. ¶ 7, Affidavit of
Merit by Larry Hernandez, ¶18; Exhibit 3.] After a disciplinary hearing on
the misbehavior report issued relative to the incident, the charges were dropped
because of Claimant’s “mental illness”. [Affidavit of Merit,
¶15; Exhibits 1, 2]. Various delays in pursuing the matter ensued,
premised upon a misunderstanding concerning whether Claimant needed to exhaust
his administrative remedies prior to pursuing a claim for money damages in the
Court of Claims. The Assistant Attorney General opposes the relief requested
for two reasons. First, he argues that movant has not annexed an Affidavit of
Merit by a psychiatric expert relative to the “psychiatric malpractice
cause of action.” [Affirmation by Dewey Lee, Assistant Attorney General,
¶2]. Second, he argues that no adequate excuse or explanation has been
offered as to why - despite Counsel having been consulted in February 2005 about
a cause of action accruing on May 22, 2004 - no motion was made
earlier. Counsel for the Claimant indicates in her Reply Affirmation that
there is no claim of psychiatric malpractice but rather Claimant’s claim
is for “negligence in restraining an individual who was in the psychiatric
unit and in doing so, causing severe injuries to the claimant.” [Reply
Affirmation by Eleanor N. Flach, ¶3]. The motion must be timely
brought in order to allow that a late claim be filed “. . . at any time
before an action asserting a like claim against a citizen of the state would be
barred under the provisions of article two of the civil practice law and rules .
. . ” Court of Claims Act §10(6). There is no negligent assault
cause of action in New York State. Schetzen v Robotsis, 273 AD2d 220,
220-221 (2d Dept 2000); Sanchez v Walkill Central School District, 221
AD2d 857 (3d Dept 1995). A claim predicated upon the use of force by a
correction officer, even if the use of force was unintentional, is a cause of
action for assault. Mazzaferro v Albany Motel Enterprises, Inc., 127 AD2d
374, 376 (3d Dept 1987). In this claim - however Claimant chooses to phrase the
proposed cause of action - the applicable statute of limitations is one (1) year
as it derives from the intentional tort of assault. This claim accrued on May
22, 2004, but the motion was not brought until November 23, 2005. The motion is
untimely as the applicable statute of limitations has expired, and is denied on
that ground alone. Civil Practice Law and Rules
§215(3).Accordingly, Claimant’s motion for permission to
serve and file a late claim [M-70974] is in all respects denied.